Opinion
(Filed 3 May, 1904.)
For headnotes to this case see Jones v. Commissioners, ante, 218.
ACTION by the Battery Park Bank against the Board of Commissioners of Madison County and others, heard by Judge E. B. Jones, at chambers, Asheville, N.C. November 20, 1903. From a judgment for the plaintiff the defendants appealed.
Frank Carter and H. C. Chedester for plaintiff.
T. S. Rollins and Gudger McElroy for defendants.
(131)
The facts in this case are substantially the same as in Jones v. Comrs., 135 N.C. 218, the only difference being that the plaintiff here alleges that he holds $722 of the scrip issued by the county for necessary expenses and for which he wishes county bonds, and in Jones v. Comrs. the plaintiff held bonds which are not yet due but which he wished refunded in new bonds. Whatever distinction this may make in the rights of the plaintiff, if any, our decision in Jones v. Comrs. is not based upon such difference, but upon the fact that chapter 289, Laws 1903, is not mandatory, and places the issuance of bonds in the discretion of the board of county commissioners, who are merely "authorized and empowered" to make such issue.
For the reasons given in that case the judgment herein, which peremptorily orders bonds issued to the plaintiff, is likewise
Reversed.